FIGHTING MONSTERS: BRITISH-AMERICAN WAR-MAKING AND LAW-MAKING

Reviewed by Paul Carrese, Professor of Political Science, US Air Force Academy. Email: paul.carrese [at] usafa.edu.
Views expressed are the author’s alone, and not those of any government agency.

pp.110-116

This work joins many others that have vociferously condemned the George W. Bush and Blair governments for undertaking a global war on terrorism, although it also seeks to “elaborate a theory of law.” Fighting Monsters considers “how the way we think about law affects the way we make war and how the way we think about war affects the way we make law” (p.vii). Four military-political policies pose particular challenges to the rule of law in liberal democracy: aggressive or pre-emptive war, targeted killings (such as drone strikes), torture, and arbitrary detention. Rory Brown, a London barrister who also holds a Ph.D. in Philosophy of Law and War from the European University Institute in Florence, Italy, blends high theory with pugnacious criticism of the Bush-Blair era, since – although not articulated this way – his conception of theory seems to be quasi-Marxist, post-modernist praxis. “Description is prescription,” he declares (p.8). Brown mentions few sources in jurisprudence; he cites H.L.A. Hart once, and Dworkin only for his writings on terrorism. Fighting Monsters more regularly invokes philosophers and social theorists like Schmitt, Derrida, Habermas, Hobsbawm, Martha Nussbaum, and especially Stephen Holmes’s The Matador’s Cape (2007). Nor is this a work that analyzes case law or legislative debates about national and international security or terrorism. Brown’s aim, instead, is to inspire legal elites to shape societal thinking about security, terrorism, and war so that the war crimes of the Bush and Blair governments won’t be tolerated. Our norms against aggressive war, torture, arbitrary detention, and targeted killings weren’t effective; these practices were, in a precise sense, legal during the Bush era because enforced by governments; so, we must categorically criticize and discredit the sources of such thinking and policy-making, thereby elevating the correct norms into binding law. On a secondary level, Fighting Monsters argues that this morally elevated view will more effectively oppose terrorism, since violence only begets violence. Brown concludes that, “contrary to received wisdom, we need not become monstrous to fight monsters,” and, “our efforts should be to create a world community of tolerant pluralism limited by a shared commitment to renounce the usage of certain means to push political agendas” (pp.279, 282).

This summary does not capture the tone of moral condemnation of the Bush and Blair governments and their supporters in the war on terror, who, by the close of Fighting Monsters, are morally inferior to Bin Laden, Saddam Hussein, or other murderous outlaws and tyrants. Moreover, the reader should note the [*111] extremes to which liberal democracy would be exposed by this largely Kantian conception of states subordinated to a cosmopolitan legal order and policing power. We should accept terrorist nuclear attacks rather than violate our moral norms: “it remains completely unclear to more stoic observers how terrorism presents a threat to democracy. Even in the event of a massive series of nuclear strikes by terrorists, in the aftermath, those of us remaining can still, and probably would, vote on what to do” (p.32). Alternately, if military or intelligence officials violate norms by abusing a terrorist in a “ticking time bomb” scenario to prevent the murder of countless innocents, those personnel should be punished afterwards and the terrorist compensated, to restore the proper legal-moral fabric (pp.204, 273). Finally, Brown repeatedly characterizes (following Stephen Holmes) the American military – or at least some of its members, and especially their highest military and civilian leaders – as war criminals, ill-informed, or barbarous. Praxis in the service of the peaceful cosmopolitan legal order requires that certain acts – and those who’ve undertaken them – be utterly discredited. The reader thus continually moves between interesting academic discussions and ruthless polemic.

Brown notes that the manuscript was complete in early 2009 but he did not update it before publication in early 2011 – thus, it does not substantially address the conduct (versus the aspirations) of the Obama administration. The rationale is that the “scourge” of “violent extremism” is endemic in our modern global society, and the Bush-Blair era provides enough material for theorizing. That said, Fighting Monsters briefly notes that Obama continues a “depressingly familiar” mode of war in Afghanistan and Pakistan; that he has “failed to honor” the promise to close Guantanamo Bay, and detains inmates under “the very same, much maligned empowering Act as his predecessor” while also employing the “dubious-sounding Military Commissions;” and, that Obama gathers new detainees but holds them in Afghanistan rather than U.S. territory, and prefers “the steeply increased use of drone-mounted missile attacks” while knowing that non-combatants likely will be killed. Nonetheless, Fighting Monsters soon makes clear that “the brunt of criticism” throughout is directed at the Bush government (and secondarily Blair). We suspect their “complicity in torture of suspected terrorists” in the early years after the 2001 attacks, although “the prevailing culture of executive secrecy” still leaves us “squinting in the shadows” (pp.viii-ix). We know enough to assess “how the legality or illegality” of their “extraordinary measures” was “constituted or determined,” and this in turn can help us to discern “what ought or ought not to be legal” (p.ix).

This ambitious set of aims in turn requires a capacious rumination, and a portentously theoretical tone. We are to take our bearings from Nietzsche in Beyond Good And Evil: “He who fights monsters must see to it that he does not thereby become a monster himself” (p.13). We need a spirit (seemingly Nietzsche’s) that transcends disciplinary and conventional categories, stepping back from our “dirty war” to consider how we descended into “barbarism and brutality” (pp.1-2). Fighting Monsters explores our fall by assessing the war on [*112] terrorism as a many-sided prism (pp.9, 11), exploring its facets in the subsequent nine chapters, entitled: Language and Image; War and Crime; Liberty, Security, and Rationality; Amity, Enmity, and Identity; Sex, Terror, and Perversion; Temporality, Spirituality, and Sublimity; Economy and Hegemony; Parliaments, the Press, and the Public Man; and, finally, Legality and Brutality. The epigraph invokes Conrad’s reflection on political violence and terrorism in Under Western Eyes; the volume closes with a Shelley poem lamenting “Prejudice, Priestcraft, Opinion, and Gold” that steer us toward war and away from the reign of “Love” (p.287). It seems that Nietzsche is to play Virgil to Brown’s Dante, escorting us through our self-inflicted Inferno (Fighting Monsters invokes The Divine Comedy at several points). Reading such a long, passionate, and repetitive work is perhaps our purgatory; and, there is a brief glimpse of paradise, a cosmopolitan legal order of high ideals, effectively ruled by progressive legal elites (see, e.g., pp.52, 133, 187-88, 203-04). Brown occasionally cites Kant, but more often invokes a mentor’s idealist conception – Philip Allott’s Eunomia: New Order For a New World (1990). Allott and kindred authorities (especially Stephen Holmes) take turns as Beatrice, escorting us to heights that Nietzsche cannot ascend. Liberal democracy must strive to replace war with policing, forging “a common human political and jurisprudential bond on the anvil of an international criminal law, which enjoins a wholesale repudiation of aggression and indiscriminating violence” (p.282).
The Bush-Blair policies are “more consonant with our understanding of barbarism and brutality than civilization and legality;” moreover, they have not protected the liberal democracies or the globe from terrorism (p.2). Brown’s practical-theoretical aim is a “phenomenology of law” offered for “altering our consciousness.” If we “improve our law-making by understanding our law-making” we can “reduce the incidence of terrorism through prudent lawyering” (pp.10-11). Restoring the rule of law will require the rule of lawyers, but the right sort, not those such as “the extraordinary Mr. Yoo” (p.102). The first step is to “conceive of law” anew: Law is “coercion, approved prior to, subsequent to, or in the absence of its exercise, by power” (p.3). To this seemingly Hobbesian or Austinian view Brown adds a post-modernist corollary, emphasizing society-wide construction of law. Law is “a social fact,” a product of “what people think and do” (p.2). It means “rules that will faithfully and, where necessary, forcefully be applied to us by the police and the courts,” but these rules are “indeterminate and dynamic,” depending “entirely on what common people – citizenry and officers of the law alike – think and do from time to time” (p.4). Thus: “Law is constant revolution” (p.4). So, if international norms are excluded from law in one sense, this permits us to confront the hard truth that “torture” in the Bush-Blair era was legal (p.5). If “we create the law” we share blame for its moral failures (p.5). These truths hopefully will turn us toward the saving power of international legal elites, modeled upon European Union administrative bodies and courts, to overcome the parochial injustices of particular states – a transformation, Brown notes, that has begun “in judicial minds” in many EU member states. The “character of law,” [*113] the actual force of authority, thus ideally flows from legal elites to “the social power” or “prevailing political thinking” (p.6).

This apparent European analogue of the American “law and society” school saves international law, at least its non-enforceable normative components, to be a deeper law or to become law: such norms “are aspirations, and to that extent, exert the sort of social power that a norm requires” (p.8). Given these kinds of theoretical and political commitments in the opening pages of Fighting Monsters, a reader can predict what the journey through Inferno to Paradise will involve. The Bush-ites lied (using “language and image”) and people died. By militarizing our response to terrorism (“war and crime”), we have only produced more terrorism and become monsters. For each facet of the prism there are serious and interesting moments of analysis, but just as often Brown echoes the single-minded critique by Holmes of the Anglo-American “reckless response to terror” (Holmes 2007). In the Holmes-Brown view, radical Islamist terrorism and its various state sponsors are not as threatening as Bush-Blair claimed, especially because the September 2001 attacks were a “domestic crime” and not as ominous as we have been told (Fighting Monsters, e.g. pp.23-24, 35, 157). Further, Bush, Rumsfeld, Cheney, Blair, Yoo, and their ilk may not deserve the third degree but they do get the reductio ad Hitlerum treatment: the regular references to Hitler (cited much more often than, say, Obama) invariably involve comparison to the Bush-Blair war criminals. Not only was the 2003 Iraq war a crime against international law and the “deep ideals” of liberal democracy, but so, too, was the 2001 Afghanistan war (pp.278, 59). Constructivism apparently requires, or allows, that opposing views be deemed “pathologies” (p.13). Conversely, the serious sources of al-Qaeda and its thinking, such as Sayyid Qutb, never once appear – which conveniently reinforces the view that Anglo-American leaders overreacted to a few crazy, isolated criminals in 2001.

One unintended irony here is that we now know of the conversion of President Obama and his lawyers, such as Harold Koh, from excoriating condemnations of several Bush practices to having adopted many of them: extraordinary renditions (including use of partner governments to detain suspects without due process, for U.S. officials to interrogate); detentions at Guantanamo Bay and elsewhere (such as Bagram Airfield, Afghanistan); state secrecy claims; military commissions; signing statements; and, the Patriot Act. The Obama administration also has expanded Bush policies, or implemented new ones, that Fighting Monsters seemingly would consider lawless, such as massively increased drone strikes to kill alleged terrorists – thereby denying them any due process (also forsaking intelligence gathering); killing United States citizens in such drone strikes (Anwar al-Awlaki and others); and, deploying military force to overturn a sovereign government without Congressional authorization (Libya). As noted, Fighting Monsters briefly mentions some of these developments, but offers no sustained criticism. At one point Brown notes that the kind of judicial daring undertaken by the Supreme Court in Boumediene (2008) might have unintended consequences: “when the detention of suspected terrorists becomes subject to judicial [*114] oversight, an executive might, perversely, prefer to assassinate them” (p.10); but he doesn’t pursue the thought. Moreover, furious critics of Bush such as Holmes practically have fallen silent since 2009 about the deeds of the Obama administration. This apparent double-standard is the theme of political scientist Stephen Knott’s Rush To Judgment (2012); readers of Fighting Monsters would do well to balance it with Knott’s view and with lawyer Jack Goldsmith’s carefully measured Power And Constraint (2012).

More fundamentally still, it is not surprising that the mission for prescription – to transform the world – can undermine the care with description expected of academic works and constructive public discourse. A case study of this slide into polemic is the use made throughout Fighting Monsters of retired U.S. Air Force General Chuck Horner. Brown cites Horner and his concept of “shock and awe” regularly, so as to reinforce the summary judgment of Horner made by Holmes in The Matador’s Cape that the American military is prone to a blend of muscle-bound stupidity and war crimes. Brown relies uncritically on Holmes about Horner; and Holmes in turn had relied uncritically on a standard source about the 2003 Iraq war, Cobra II (Gordon and Trainor, 2006). The problem is that for all the interesting reporting and analysis in Cobra II, it is wrong about Horner; Holmes then compounded the error by embellishing it with moralistic denunciation; and, Brown simply adopts the whole flawed narrative (e.g., Fighting Monsters pp.33-34). This version of the game “telephone” began with Gordon and Trainor reporting that Rumsfeld, in late 2001, sent the commanding general of U.S. forces in the Middle East a copy of Horner’s unpublished (and unclassified) paper “How and Where to Apply Shock and Awe” (Horner 1998). Here I must note my sympathy with the larger judgment Gordon and Trainor make about Rumsfeld and many senior military officers during 2001 to 2005. I have raised a similar concern with students and colleagues at the Air Force Academy since before 2001: that a short-sighted confidence in military technology and firepower can mask failures of strategic and moral thinking. However, Gordon and Trainor misuse Horner, by citing only the sensational conclusion of his six-page paper (Gordon and Trainor, 2006, pp.35-36; note 16, p.517). Horner wrote that the U.S. military “must be considered the madmen of the world, capable of any action” and that if “we are to achieve noble purposes we must be prepared to act in the most ignoble manner” – but these astonishing thoughts are torn from a more sober context. I don’t know Horner, or very much about him, but the words didn’t sound right; I sensed that this portrayal deserved investigation.

A little research revealed that when Holmes conveys the passage from Gordon and Trainor he omits a sentence that makes Horner seem less bloodthirsty, since it recalls Horner’s larger argument about perceptions and deterrence in warfare: “It is only our ends that must be admired,” but “our threat” must “be credible.” Further, Holmes had introduced the Horner quotation as indicative of “dishonorable” U.S. military tendencies and, after selectively quoting an already-selective quotation, added that “this is how terrorists and tyrants think” (Holmes [*115] 2007, p.91). Most fundamentally, what was missed in each leg of “telephone” is that the quoted (or partially quoted) paragraph was a colorful conclusion to Horner’s careful study of the ethical, legal, and military parameters of a doctrine called “Rapid Dominance” that was more colloquially called “Shock and Awe;” that Horner had framed the doctrine as useful for deterring conflict, maintaining peace, or restoring international order; that, if conflict did occur, the doctrine could make war mercifully shorter by causing collapse of an enemy’s will; and, that throughout Horner noted ethical and international-law constraints from the law of armed conflict on targeting of non-combatants, proportional use of force, and avoiding use of weapons of mass destruction (WMD). Horner thus advocated the need to “be considered” as madmen – just as the U.S. had done in its official policy of Mutual Assured Destruction for many decades – but now in a context in which either WMD or conventional conflict needed to be deterred or controlled. Gordon and Trainor, and especially Holmes and Brown, miss all of this (and more) in their drive to prescribe Horner as emblematic of an imperial American military culture. In fact, Horner had warned that U.S. forces in a particular conflict “must avoid events that debilitate our legitimacy with non-participant realms of the world,” and “must understand this impact of the rest of the world viewing and judging the actions of a super-power” (Horner 1998, p.5).

My aim is not to defend Rapid Dominance, or the various decisions of the Bush and Blair governments given their concerns about further catastrophic attacks after 9/11. At least it must be said that, whatever the errors or incompetence in waging the Afghanistan or Iraq wars, they are distinct from the justice of the wars per se, or the prudence of deciding to fight them. Moreover, especially given the many continuities between the settled policies of the Bush administration and its successor, the use of ferocious polemic against Bush and the U.S. military disserves every party involved, while impeding the difficult search for truth and sound parameters of debate. Perhaps in these hyper-charged times we could use a little less Nietzsche and the stance of edgy philosophizing, and a little more of the moderate spirit of Montesquieu – a constructive spirit in modern liberal constitutionalism, including about the importance of international law and the priority of peace over war. As much as Montesquieu admired modern liberty he warned of its extremes, including among intellectuals. It is an unfortunate truth that under despotisms “historians betray the truth because they do not have the liberty to tell it,” but “in extremely free states, historians betray the truth because of their very liberty, for, as it always produces divisions, every one becomes as much the slave of the prejudices of his faction as he would be of a despot” (The Spirit Of Laws, 1748, book 19, chapter 27, end). Perhaps in academic and public discourse today, as we try to adequately define and limit war in our complicated world, we should first restore our wariness of our own intellectual prejudices and factions so as to moderate, rather than degrade, our thinking.

REFERENCES:

Allott, Philip. 1991. Eunomia: New Order For A New World. Oxford: [*116] Oxford University Press.

Horner, Chuck (General, U.S. Air Force). 1998. “How and Where to Apply Shock and Awe.” Unpublished, unclassified U.S. Department of Defense paper. Supplied to the reviewer by Dr. James Wade, October 2012.

Knott, Stephen F. 2012. Rush To Judgment: George W. Bush, The War On Terror, And His Critics. Lawrence: University Press of Kansas.